# Manoj Kumar Giri v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-24
- **Case number:** Service Single No. 21568 of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-giri-v-state-of-u-p-ors-47162
- **Pages:** 5

## Headnote

A. Service Law - Promotion - In the present
case, the issue of the petitioner was kept under
seal cover for the reason that the departmental
inquiry was pending against him and on
conclusion
of
departmental
inquiry
on
24.01.2020 by the disciplinary authority, the
petitioner should have been promoted in terms
of the recommendations so made by the DPC.
Moreover, failure to consider candidature based
on the uncommunicated adverse entry against
the petitioner for the year 2015-16 is not
tenable in the eyes of law. (Para 14)

Writ Petition Allowed. (E-8)

List of Cases cited:-

## Text

130 INDIAN LAW REPORTS ALLAHABAD SERIES
wrote a letter dated 26.12.2018 to the
petitioner fixing date for 31.12.2018 and
the petitioner appeared before the Inquiry
Officer but did not make any request for
producing any material/witness. However,
no such date has been fixed for the
petitioner to appear before the Inquiry
Officer, as considered above.

11. I am of the considered opinion
that the letter dated 26.12.2018 may not be
treated as if any date, time and place was
fixed for oral inquiry and preferring the
representation by the petitioner dated
31.12.2018 on the letter dated 26.12.2018
may not be sufficient to treat as the date for
oral inquiry. Therefore, for all practical
purposes no date, time and place was fixed
to conduct oral inquiry. Therefore, in view
of the above instead of relegating the
matter to the Public Service Tribunal for
filing reference petition as it would be a
futile exercise, I hereby set-aside/quash the
order dated 01.10.2020 remanding back the
issue before the disciplinary authority to
direct the Inquiry Officer to conduct the
inquiry from the stage of defect in terms of
para 09 of the judgment of Hon'ble Apex
Court rendered in re:- Chairman, LIC of
India & others vs. A. Masilamani
[reported in (2013) 6 SCC 530] which
reads as under:-

"9. It is a settled legal proposition,
that once the Court sets aside an order of
punishment, on the ground that the enquiry
was not properly conducted, the Court cannot
reinstate the employee. It must remit the
concerned case to the disciplinary authority,
for it to conduct the enquiry from the point
that it stood vitiated, and conclude the same.
(Vide:
Managing
Director,
ECIL,
Hyderabad etc.etc. v. B. Karunakar etc.etc.,
AIR
1994
SC
1074;
Hiran
Mayee
Bhattacharyya v. Secretary, S.M. School for
Girls & Ors., (2002) 10 SCC 293; U.P. State
Spinning C. Ltd. v. R.S. Pandey & Anr.,
(2005) 8 SCC 264; and Union of India v.
Y.S. Sandhu, Ex- Inspector, AIR 2009 SC
161)."

12. It is further directed that in case the
departmental inquiry is conducted against the
petitioner from the stage of defect in terms of
the judgment of Hon'ble Supreme Court in
re:- Chairman, LIC of India (supra), the
same shall be conducted and concluded
strictly in accordance with law by affording
him ample opportunity of hearing subject to
proper cooperation of the petitioner with the
inquiry proceedings, inasmuch as, no inquiry
proceedings/departmental proceedings may
be concluded to its logical conclusion unless
the employee cooperates with the inquiry
proceedings. The inquiry shall be concluded
within a period of four months. Thereafter,
the
disciplinary
authority
may
pass
appropriate orders strictly in accordance with
law as directed above with expedition
without keeping the issue pending for
unlimited period.

13. Consequences to follow.

14. The writ petition is, accordingly,
allowed. No order as to costs.
----------
(2021)08ILR A130
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No. 21568 of 2020

Manoj Kumar Giri ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
8 All. Manoj Kumar Giri Vs. State of U.P. & Ors.
131
Counsel for the Petitioner:
Anurag Shukla, Abhishek Mishra, Suryansh
Narula

Counsel for the Respondents:
C.S.C.

A. Service Law - Promotion - In the present
case, the issue of the petitioner was kept under
seal cover for the reason that the departmental
inquiry was pending against him and on
conclusion
of
departmental
inquiry
on
24.01.2020 by the disciplinary authority, the
petitioner should have been promoted in terms
of the recommendations so made by the DPC.
Moreover, failure to consider candidature based
on the uncommunicated adverse entry against
the petitioner for the year 2015-16 is not
tenable in the eyes of law. (Para 14)

Writ Petition Allowed. (E-8)

List of Cases cited:-

1. Arun Kumar Goel Vs U.O.I .& ors. 2015 (8)
ADj 732 (DB) (LB) (followed)

2. Gurdial Singh Gijji Vs St, of Punj, AIR 1979
SC 1622 (followed)

3. U.P. Jal Nigam &oOrs. Vs P.C. Jain & ors.
1996 SCC (2) 363(followed)

4. Devdutt Vs U.O.I. & ors. 2008 (8) SCC
725(followed)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Anurag Shukla, learned
counsel for the petitioner and Sri Rajesh
Kumar, learned Standing Counsel for the
State.

2. By means of this petition the
petitioner has prayed following relief:-

"i. Issue a writ, order or direction
in the nature of Certiorari to quash the
impugned order dated 29.10.2020 passed
by Respondent No.2, which has been as
ANNEXURE No.1 to this Writ Petition.

ii. Issue a Writ or direction in the
nature of Mandamus, commanding the
respondents to immediately promote the
Petitioner from the post of Junior Clerk to
the post of MARKETING INSPECTOR
w.e.f. 26.09.2019 alongwith maintaining his
seniority will all consequential benefits.

iii. Issue a Writ or direction in the
nature of Mandamus, commanding the
respondents to take the necessary stern
action against the erring persons found
responsible for unnecessary delaying the
petitioner's
promotion
without
any
intelligible cause."

3. Learned counsel for the petitioner
has drawn attention of this Court towards
order dated 24.01.2020 passed by the
regional Food Controller (annexure no.4)
whereby the petitioner has been exonerated
from all the charges for which the
departmental inquiry against the petitioner
was pending. By means of order dated
24.01.2020, the departmental inquiry was
finalized by the disciplinary authority with
strong warning to the petitioner, therefore,
for all practical purposes no departmental
inquiry was pending against the petitioner
w.e.f. 24.01.2020.

4. Learned counsel for the petitioner
has contended that earlier the DPC met on
20.09.2019 for making promotion of Junior
Clerks and the candidature of the petitioner
was kept under seal cover for the pendency
of departmental inquiry which has been
finalized on 24.01.2020 .

5. After the order dated 24.01.2020
being passed the petitioner approached the
competent authority for opening seal cover
for providing him promotion which has
132 INDIAN LAW REPORTS ALLAHABAD SERIES
been recommended by the DPC in terms of
office memo dated 28.05.1997 which
provides the modalities of keeping any
matter under seal cover and opening the
same.

6. As per the learned counsel for the
petitioner his case was squarely covered
with the conditions and guidelines of
Government
Order
dated
28.05.1997
(Annexure No.14) in as much as the
pending departmental inquiry against the
petitioner was finalized by the disciplinary
authority vide order dated 24.01.2020,
therefore the petitioner should have been
promoted on the post of Marketing
Inspector from the date of DPC.

7. As per learned counsel for the
petitioner when no suitable order was
passed by the competent authority the
petitioner filed a writ petition bearing
Service Single No. 14736 of 2020 in re:
Manoj Kumar Giri and State of U.P. which
was decided by this Court on 16.09.2020
directing the opposite party to take
appropriate decision in the issue of the
petitioner within a period of six weeks.

8. The Commissioner of Food and
Civil Supply passed an impugned order
dated 29.10.2020 (Annexure-1) rejecting
the claim of the petitioner.

9. Sri Anurag Shukla, learned counsel
for the petitioner has assailed the aforesaid
rejection order by saying that the reasons
indicated in the impugned order are
misconceived. Basically the reasons so
taken by the competent authority in the
impugned order is that the petitioner was
awarded one adverse entry in the year
2015-16, therefore, his candidature shall be
considered in the next DPC. The impugned
order itself says that such adverse entry has
not been communicated to the petitioner.
On that Sri Anurag Shukla, learned counsel
for the petitioner has drawn attention of this
Court towards Annexure No.15 which is
the judgement of the Division Bench of this
Court in re: Arun Kumar Goel Vs. Union
of India & Ors. 2015(8) ADJ 732 (DB)
(LB) referring para 7 which reads as
under:-

"7. In the case of State of Orissa
v. Dr. (Miss) Binapani Dei and others, AIR
1967 SC 1269, the Hon'ble Supreme Court
has held that material adverse to the
petitioner which is not communicated to
him, cannot be relied upon adversely
affecting his civil rights. The same
proposition has been laid down by the
Hon'ble Supreme Court in subsequent
decisions. Those are referred as under:

(1) Gurdial Singh Gijji vs. State
of Punjab, AIR 1979 SC 1622

(2) U.P. Jal Nigam and others vs.
P.C. Jain and others, 1996 SCC (2) 363

(3) Devdutt vs. Union of India
and others 2008 (8) SCC 725."

10. Sri Anurag Shukla, learned
counsel for the petitioner has drawn
attention of this Court towards Annexure- 5
which is an order dated 26.09.2021 passed
by the Commissioner Food and Civil
Supply
indicating
therein
that
the
employees against whom the departmental
inquiry has been finalised shall be given
notional promotion w.e.f. the date such
promotion has been given to similarly
placed employees. He has also drawn
attention of this Court towards Annexure
No.9 which is an order dated 18.02.2020
which indicates that the petitioner has not
been communicated the adverse entry for
the year 2015-16. Annexure-10 is an office
order dated 14.08.2020 passed by the
Commissioner
Food
Inspector
Supply
8 All. Manoj Kumar Giri Vs. State of U.P. & Ors.
133
providing promotion to the identically
placed persons namely Sri Ashish Kumar
Shukla w.e.f. the date of recommendation
by DPC.

11. Therefore, Sri Anurag Shukla,
learned counsel for the petitioner has
submitted that the impugned order dated
29.10.2020
is
patently,
illegal
and
arbitrary and has been passed without
considering the factual and legal matrix
of the issue, therefore, the same may be
set aside and the direction may be issued
to the opposite party to promote the
petitioner on the post of Marketing
Inspector w.e.f. 26.09.2019 when the
promotion order has been passed in
favour
of
the
similarly
placed
employees.

12. Sri Rajesh Kumar, learned
Standing Counsel for the State has
drawn attention of this Court towards
para 6 to 8 of the counter affidavit by
submitting that the candidature of the
petitioner
for
promotion
shall
be
considered by the next DPC, however,
none of the submissions so made by Sri
Anurag Shukla, learned counsel for the
petitioner has been disputed in the
counter affidavit and if some of the
contents have been disputed but no
cogent material to this effect has been
placed before this Court.

13. Having heard learned counsel
for the parties and having perused the
material on
record,
I
am of
the
considered opinion that if the issue of
any employee is kept under seal cover,
in view of the Office Memo/GO dated
28.05.1997, appropriate order must be
passed by the
competent
authority
immediately
after
the
particular
condition is over as the issue of such
employee may not be kept pending for
no cogent reasons.

14. In the present case, the issue of
the petitioner was kept under seal cover on
28.09.2019
for
the
reason
that
the
departmental inquiry was pending against
him and the departmental inquiry has been
finally
concluded
vide
order
dated
24.01.2020 (Annexure No.-04) by the
disciplinary
authority,
therefore,
the
petitioner should have been provided
promotion in terms of the recommendation
so made by the DPC dated 20.09.2019.
Further, one ground so taken in the
impugned order that on account of one
adverse entry against the petitioner for the
year 2015-16 such recommendation of
DPC dated 20.09.2019 may not be taken
into account and his candidature shall be
considered in the next DPC is not tenable
in the eyes of law in as much as
uncommunicated adverse entry shall not be
given effect to in view of the settled
provision of law by the Apex Court and by
this Court. Undisputedly, the petitioner has
not been communicated the adverse entry
for the year 2015-16. Besides, the similarly
placed employees have been given the
promotion notionally pursuant to the
recommendations of DPC, therefore, the
petitioner may not be discriminated in as
much as the concerning opposite party has
got no cogent explanation discriminating
the petitioner with the similarly placed
employees.

15. In view of the facts and
circumstances stated above and also in
view of the dictum of Apex Court in re:
Gurdial
Singh
Gijji
vs.
State
of
Punjab(supra), U.P. Jal Nigam and others
vs. P.C. Jain and others(supra), Devdutt
vs. Union of India and others (supra) and
view of this Court in re:Arun Kumar Goel
134 INDIAN LAW REPORTS ALLAHABAD SERIES
vs. Union of India (supra) the impugned
order dated 29.10.2020 passed by the
Commissioner Food and Civil Supply
(Annexure No.1) is not sustainable in the
eyes of law being illegal, arbitrary,
discriminatory and violating the Article 14
of the Constitution of India and is liable to
be set aside/quash.

16. Accordingly, the writ petition
is allowed.

17. A writ in the nature of
certiorari
is
issued
quashing
the
impugned
order
dated
29.10.2020
passed by the Commissioner Food and
Civil Supply(respondent No.2) which is
contained as Annexure No.01.

18. A writ in the nature of
mandamus commanding the opposite
parties to promote the petitioner from
post of Junior Clerk to the post of
Marketing Inspector w.e.f. 26.09.2019.
The petitioner shall be entitled for all
consequential service benefits including
seniority etc.

19. No order as to costs.
----------
(2021)08ILR A134
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No. 24589 of 2020

Lalta Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Prahlad Maurya

Counsel for the Respondents:
C.S.C.

A. Service Law - Post-retiral dues - The
petitioner was given pay-scale of Rs. 4500-7000
after completion of 24 years of service and later
on after modification of the Government Order
the pay-scale was upgraded to Rs. 5000-8000.
The competent authority carried out the
impugned exercise after 15 months from
retirement of the petitioner without modifying
the order until the petitioner approached this
Court for retrieving his post retiral dues. The
competent authority cannot deduct the excess
payment from the post retiral dues of the
petitioner without modifying the order by
providing him the opportunity of hearing. (Para
8)

Writ Petition Allowed. (E-8)

List of Cases cited:-

1. St. of Punj. & ors. Vs Rafiq Masih (White
Washer) (2015) 4 SCC 334 (followed)

2. Sushil Kumar Singhal Vs Principal Secretary,
Irrigation & ors. (2014) 16 Supreme Court Cases
444

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Prahlad Maurya, learned
counsel for the petitioner and Sri Virendra
Kumar
Srivastava,
learned
Standing
Counsel for the State respondents.

2. By means of this petition the
petitioner has prayed following relief:

(i) issue a writ of certiorari by
quashing
the
order
impugned
dated
21.09.2020 and 19.11.2020 passed by the
opposite party no. 2 contained in Annexure
No. 1 & 2 respectively.